United States: Trump Administration Imposes Broad Sanctions On The Government Of Venezuela

Key Points

In a further escalation of U.S.
sanctions on Venezuela in support of its efforts to oust the regime
of Nicolás Maduro, on August 5, 2019, the Trump
administration imposed comprehensive sanctions on the Government of
Venezuela, significantly expanding established U.S. sanctions
measures.

This latest action by President Trump
also provides grounds for targeted imposition of secondary
sanctions on any person (U.S. or non-U.S.) that
materially assists, sponsors or provides financial, material or
technological support for, or goods or services to or in support of
the Government of Venezuela.

Although not a full embargo, given
the broad reach of U.S. sanctions and potential sanctions exposure
for companies found to provide “material support” to
the Maduro regime, this further escalation of U.S. sanctions on
Venezuela should prompt both U.S. and non-U.S. companies to closely
review their established business interests in Venezuela, and
pending or proposed new transactions, to maintain effective
compliance safeguards.

Introduction

On August 5, 2019, the Trump administration issued Executive
Order 13884, “Blocking Property of the Government of
Venezuela” (EO 13884) imposing new economic sanctions that
broadly prohibit U.S. persons from dealing with the Government of
Venezuela or its property absent a license issued by the U.S.
Department of the Treasury’s Office of Foreign Assets Control
(OFAC). These sanctions, which went into effect at 9:00 am EST on
August 5, 2019 (subject to a month-long wind-down general license
described below), are a significant escalation of U.S. sanctions
against Venezuela and form part of the administration’s
strategy to utilize sanctions as a key instrument of U.S. foreign
policy to pressure the government of Nicolás Maduro to
relinquish power and step down—actions that are in response
to the Maduro government’s illegitimate seizing of power,
acts of corruption, and human rights abuses.1

Along with the issuance of EO 13884, OFAC amended 12 of the
16 pre-existing general licenses and issued 13 new general
licenses, including a wind-down general license, that allow
U.S. persons to continue to engage in certain narrow categories of
business with the Government of Venezuela for a limited period of
time. In addition, OFAC issued new Frequently Asked Questions
(FAQs) providing additional guidance and clarification regarding
the new measures as well as guidance regarding provision of
humanitarian assistance and support for the general population of
Venezuela.

Contrary to initial media reports, this action does not impose a
comprehensive “embargo” on Venezuela of the kind seen
in connection with other territory- or country-based U.S. sanctions
programs, such as U.S. sanctions affecting Crimea, Cuba, Iran,
North Korea and Syria—a fact reaffirmed by the U.S. State
Department on August 6, 2019.2 Nevertheless, these measures are
likely to have a disruptive effect on the interests and commercial
activities of both U.S. and non-U.S. companies with business
associated with Venezuela given the Venezuelan Government’s
significant role and entanglement in the country’s economy,
generating added compliance, political and business risks, as well
as related management burdens for the continuation of established
activities involving Venezuela.

Sanctions Imposed by EO 13884

Blocking Sanctions

EO 13884 imposes comprehensive blocking measures on the
Government of Venezuela that block all property of the Government
of Venezuela that is either in the United States or within the
possession of any U.S. person worldwide. U.S. persons include any
U.S. citizen, any person with U.S. permanent resident alien
“Green Card” status (regardless of where they are
located) any entity organized under the laws of the United States
or any jurisdiction within the United States (including foreign
branches) or any person in the United States.3 The new sanctions
specifically prohibit U.S. persons from dealing in any property or
interests in property of the Government of Venezuela absent a
general or specific license issued by OFAC4 and require U.S.
persons to block and report to OFAC any such property that comes
into their possession or control.5 The executive order further
prohibits U.S. persons from providing or receiving funds, goods or
services from the Government of Venezuela absent a license.6

EO 13884 expressly exempts transactions for the conduct of the
official business of the U.S. federal government, as well as
transactions related to the provision of articles such as food,
clothing, and medicine intended for use to relieve human suffering
in Venezuela.7

Definition of “Government of Venezuela”

The definition of the “Government of Venezuela”
under EO 13884 is broadly worded and includes any of the following
individuals or entities, regardless of whether they appear
on the Specially Designated Nationals and Blocked Persons
list (“SDN List”):8

The state and government of
Venezuela.

Any political subdivision, agency, or
instrumentality of the government of Venezuela.

The Central Bank of Venezuela
(already designated on the SDN List by OFAC in April 2019).9

Any person owned or controlled,
directly or indirectly, by the foregoing.

Any person who has acted or purported
to act directly or indirectly for or on behalf of any of the
foregoing, including as a member of the Maduro regime.11

Authorization of Secondary Sanctions

EO 13884 also provides two new grounds for the U.S. government
to impose secondary sanctions (in the form of blocking sanctions)
on any person (U.S. or non-U.S.) that is
determined by U.S. officials to have engaged in the following types
of activities contrary to the executive order:

Persons determined to have materially
assisted, sponsored or provided financial, material or
technological support for, or goods or services to or in support
of, any person included on the SDN List pursuant to EO 13884.12
Notably, this designation basis only applies to persons designated
on the SDN List under EO 13884.

Persons determined to be owned or
controlled by, or to have acted or purported to act for or on
behalf of, directly or indirectly, any person whose property and
interests in property are blocked pursuant to EO 13884.13 This basis for secondary
sanctions applies to both: (1) persons designated on the SDN List
pursuant to EO 13884 and (2) nondesignated persons or entities that
form part of the Government of Venezuela under the broad definition
of the “Government of Venezuela” provided in the
executive order.

Determinations on the imposition of secondary sanctions are made
by the U.S. government on a discretionary and case-by-case
basis.

General Licenses

OFAC amended 12 of the 16 pre-existing general licenses and
issued 13 new general licenses that allow U.S. persons to engage in
narrow categories of business with the Government of Venezuela
after the effective date of the executive order. Any party relying
on any of these licenses must determine and confirm which of the
executive orders apply to a proposed transaction or activity and
then determine whether it falls within the scope of activities that
are authorized under the relevant general license with respect to
each applicable executive order.14 Further, even if the
activities are authorized under an OFAC general license, it is
important to further consider and ensure that the activities in
question do not require separate licensing from other federal
agencies, including potential export licensing by the Bureau of
Industry and Security of the U.S. Department of Commerce.

Unchanged General Licenses

Prior to the issuance of EO 13884 and the new general licenses
discussed below, OFAC had already issued 16 general licenses in
connection with pre-existing U.S. sanctions on Venezuela. OFAC
extended by amendment all of these general licenses
except:

General License No. 5, which relates
to the Petroleós de Venezuela SA 2020 8.5 Percent Bond and
remains in effect.

General License No. 14, which relates
to official business of the U.S. Government, but is specifically
exempted from EO 13884.

Amended General Licenses

For each of the 12 amended general licenses, OFAC added language
so that the activity authorized by these general licenses prior to
the new executive order continues to be authorized.15

This means that these amended general licenses, including the
general licenses authorizing transactions related to certain
Venezuela sovereign bonds, as well as transactions and activities
ordinarily incident and necessary to dealings in any debt or equity
in PdVSA or any entity in which PdVSA owns, directly or indirectly,
a 50 percent or greater interest (provided that any divestment or
transfer of, or facilitation of divestment or transfer of, any
holdings in such bonds or securities must be to a non-U.S. person),
remain in place.16

For additional information on the scope of the general licenses
previously issued, please refer to our prior alerts concerning
PdVSA-related general licenses in February and March 2019.

New General Licenses

OFAC also issued 13 new general licenses that allow U.S. persons
to continue to engage in business involving the Government of
Venezuela after August 5, 2019. Three of these general licenses are
unique to Venezuela and 10 provide authorizations similar to those
found in U.S. sanctions programs targeting Crimea, Cuba, Iran,
North Korea, and Syria.

New general licenses specific to Venezuela:

One Month Wind-Down Authorization: General License No. 28 authorizes, through
September 4, 2019, all transactions and activities prohibited by
the EO 13884 that are ordinarily incident and necessary to the wind
down of operations, contracts, or other agreements involving the
Government of Venezuela that were in effect prior to August 5, 2019
(the date of the executive order). However, OFAC clarified that
this wind-down authorization does not authorize
dealings with government entities that were blocked under previous
executive orders (e.g., PdVSA and Banco Central de Venezuela
designated under EO 13850) given that wind-down licenses involving
those blocked persons have already expired.17 In addition, this
wind-down authorization does not permit debits to
an account of the Government of Venezuela on the books of a U.S.
financial institution.

Ports and Airports in Venezuela: General License No. 30 authorizes all
transactions and activities involving the Government of Venezuela
that are “ordinarily incident and necessary to operations or
use of ports and airports in Venezuela,” provided the
transactions and dealings do not relate to the exportation or
re-exportation of diluents (e.g., crude
oil and naphtha) directly or indirectly to Venezuela or involve
entities blocked under previous executive orders
(e.g., PdVSA and Banco Central de Venezuela
designated under EO 13850). Although certain exports to Venezuela
not related to the Government of Venezuela remain permitted,
OFAC’s guidance explains that U.S. persons are prohibited
from exporting or re-exporting diluents, directly or indirectly, to
Venezuela because “exports or re-exports of diluents to
Venezuela likely include a direct or indirect interest of
PdVSA.”18

Transactions with National Assembly
and Interim Presidency of Juan Guaidó: General License No. 31 authorizes U.S. persons
to engage in all transactions involving the Venezuelan National
Assembly (including its members and staff, and persons appointed or
designated by the National Assembly to act on behalf of the
Government of Venezuela) and the Interim President of Venezuela,
Juan Guaidó (including, among others, any official,
designee, or representative (as well as their respective staff)
appointed or designated by Juan Guaidó to act on behalf of
the Government of Venezuela, as representatives to international
organizations, or appointed on the board of directors or as
executive officer of entities owned or controlled by the Government
of Venezuela). This general license applies to entities designated
under EO 13884, as well as specified prior executive orders, such
as EO 13850.

New general licenses common to other sanctions programs:

Normal Service Charges and Transfers
to Blocked Accounts: General License No. 21 authorizes U.S.
financial institutions, who are now generally required to block the
property of the Government of Venezuela, to debit any account
blocked pursuant to EO 13884 or EO 13850, as amended by EO 13857,
held at that financial institution in payment or reimbursement for
select “normal service charges” owed to it by the owner
of that blocked account and certain transfers between blocked
accounts.

Venezuela’s Mission to the UN:
General License No. 22 authorizes the
provision of goods and services in the United States to
Venezuela’s mission to the United Nations and payment for
such goods or services (but not real property), provided they are
for the official business of the mission or personal use of mission
staff members, their families or persons forming part of their
house and are not for resale (other than real estate).

Third-Country Diplomatic or Consular
Missions in Venezuela: General License No. 23 authorizes U.S.
depository institutions, U.S.-registered brokers or dealers in
securities and U.S.-registered money transmitters to process funds
transfers involving the Government of Venezuela that are necessary
for the operating expenses or other official business of
third-country diplomatic or consular missions in Venezuela to the
extent such funds transfers involving Government of Venezuela
persons were blocked solely pursuant to EO 13884. This GL is not
applicable to the U.S. consular mission presumably because the U.S.
withdrew all remaining personnel from its U.S.
Embassy in Caracas in March 2019.

Telecommunications and Mail: General License No. 24 authorizes all
transactions involving the Government of Venezuela “incident
to the receipt and transmission of telecommunications” and
all transactions of “common carriers involving the Government
of Venezuela incident to the receipt or transmission of mail and
packages between the United States and Venezuela,” to the
extent transactions with Government of Venezuela persons were
blocked solely pursuant to EO 13884.

Internet Communications: General License No. 25 authorizes the
exportation or re-exportation, directly or indirectly, from the
United States or by U.S. persons, wherever located, to or involving
the Government of Venezuela of services, software, hardware and
technology incident to the exchange of communications over the
Internet otherwise prohibited by EO 13884.

Intellectual Property Protections: General License No. 27 authorizes certain
transactions in connection with a patent, trademark, copyright or
other form of intellectual property protection in the United States
or Venezuela, including the payment of fees to the U.S. Government
or the Government of Venezuela as well as attorneys and
representatives in the U.S. and Venezuela in connection with
permitted transactions.

Support for Nongovernmental
Organizations: General License No. 29 authorizes all
transactions involving the Government of Venezuela that are
ordinarily incident to the following activities by nongovernmental
organizations: (i) activities to support humanitarian projects to
meet basic human needs in Venezuela; (ii) activities to support
democracy building in Venezuela; (iii) activities to support
education in Venezuela; (iv) activities to support noncommercial
development projects directly benefiting the Venezuelan people; and
(v) activities to support environmental protection in
Venezuela.

Personal Maintenance Within
Venezuela: General License No. 32 authorizes individuals
who are U.S. persons residing in Venezuela to engage in
transactions involving the Government of Venezuela that are
ordinarily incident and necessary to their personal maintenance
within Venezuela.

Overflight Payments, Emergency
Landings, and Air Ambulance Services: General License No. 33 authorizes the receipt
of, and payment of charges for, services rendered involving the
Government of Venezuela in connection with overflights of Venezuela
or emergency landings in Venezuela by aircraft registered in the
United States or owned or controlled by, or chartered to, persons
subject to U.S. jurisdiction. Persons subject to U.S. jurisdiction
are also authorized to engage in all transactions involving the
Government of Venezuela necessary to provide air ambulance and
related medical services, including medical evacuation from
Venezuela, for individuals in Venezuela.

Guidance on Humanitarian Transactions

In connection with the measures described above, OFAC also
published new guidance elaborating on the Trump
administration’s policy position with respect to the
provision of humanitarian assistance by U.S. persons in support of
the general population of Venezuela. This guidance (available here) underscores that “humanitarian
assistance and activities to promote democracy are not the target
of U.S. sanctions, so long as such activity meets the requirements
outlined in each authorization.”19 In this regard,
the guidance highlights that the new executive order contains an
exemption for transactions involving the provision of “food,
clothing, and medicine intended to be used to relieve human
suffering”20 and identifies various general licenses
(several of which are identified above) intended to support
humanitarian trade with Venezuela. OFAC adds that “[t]hose
involved in exports or re-exports related to these authorizations
should also consult the Department of Commerce’s Bureau of
Industry and Security to ensure eligibility of exportation or
re-exportation under its authorities.”21

OFAC states that it “encourages U.S. persons to avail
themselves of these authorizations”22 and notes that it
maintains a favorable specific licensing policy to support
activities by U.S. persons in support of humanitarian assistance
for Venezuela. To this end, OFAC will consider specific license
requests on a case-by-case basis and will prioritize license
applications, compliance questions and other requests related to
humanitarian support for the Venezuelan people.

Potential Implications of the New Sanctions

As an initial matter, it is important to underscore that the
measures authorized by EO 13884 do not amount to a comprehensive
embargo on Venezuela, and as such, the implications for business in
Venezuela are not as far-reaching as sanctions on Crimea, Cuba,
Iran, North Korea or Syria. In particular, the focus of the
prohibitions under EO 13884 principally target the current
Government of Venezuela headed by Nicolás Maduro
(transactions with the Interim President of Venezuela, Juan
Guaidó, are permissible) and are not otherwise intended to
restrict transactions involving the export or import of goods,
services or technology to or from Venezuela. Consequently, and as
supported by statements by the U.S. State Department, these
sanctions are not intended to target the people of Venezuela or
transactions with entities in Venezuela that operate exclusively in
the private sector.

Given the substantial role that the Government of Venezuela has
in that country’s economy, these sanctions are likely to
significantly disrupt activities and interests of both U.S. and
non-U.S. companies. These risks are compounded by the fact that the
plain language of the executive order extends restrictions to the
state and Government of Venezuela, any political subdivision,
agency or instrumentality thereof, as well as “any person
owned or controlled, directly or indirectly, by the foregoing, and
any person who has acted or purported to act directly or indirectly
for or on behalf of any of the foregoing, including as a member of
the Maduro regime,” regardless of whether they appear on the
SDN List.

OFAC has explicitly stated in FAQ No. 680 that it expects
financial institutions to “conduct due diligence on their own
direct customers (including, for example, their ownership
structure) to confirm that those customers are not persons whose
property and interests in property are blocked.”23 In
light of the broad reach of the sanctions, diligence and review of
transactions involving Venezuela is strongly recommended for both
U.S. and non-U.S. companies and persons.

The measures under EO 13884 may give rise to new and heightened
reputational and political risks for companies that continue to
engage in Venezuela-related business. Although these new sanctions
do not constitute a comprehensive embargo, Venezuela is now being
considered by financial institutions and others in the same risk
and compliance context as other comprehensively sanctioned
countries. This could be reflected in derisking practices and
hesitation by financial institutions and other counterparties to
engage in Venezuela-related business, either directly or
indirectly, even if such business is legally permissible under
available general licenses.

Furthermore, the measures on Venezuela are clearly intended to
further the U.S. foreign policy goal of ousting the government of
Nicolás Maduro and supporting Interim President Juan
Guaidó. It is too early to tell whether these latest
measures will ultimately have the intended effect. However, the
White House has indicated that it intends to use EO 1884 to block
property of persons who provide material support to the Maduro
regime.24

Lastly, although over 50 countries support the Guaidó
regime and regime change, the U.S., along with Canada, are alone in
imposing such strong sanctions. Seven U.S. senators recently wrote
to EU High Representative for Foreign Affairs Federica Mogherini,
“strongly urg[ing] the EU to align its restrictive measures
against Venezuelan persons with those imposed by the United States
and Canada,”25 but statements by the EU to date
do not indicate that the EU currently has the appetite to place
additional sanctions on the Maduro regime at this time.

Footnote

1For
additional context on the U.S. sanctions imposed on Venezuela,
please see our prior client alerts, which cover the designation of
Petroleós de Venezuela (PdVSA) (
here), amendments to certain general licenses with respect to
PdVSA (
here), as well as the designation of certain Venezuelan
financial institutions (
here).

14 In particular, note that OFAC has
updated FAQ No. 508 to clarify that EO 13884 should be read in
conjunction with prior Venezuela-related executive orders, such as
EO 13808 which impose sanctions on dealings in Government of
Venezuelan debt and bonds, among other restrictions. See
OFAC FAQ No. 508 (updated Aug. 6, 2019). In other words, U.S.
persons relying on a general license permitting activities
restricted by EO 13884 must also consider whether such activities
are prohibited by prior executive orders and, if so, confirm that
those activities are permitted under a general or specific
license.

15 In addition to amending the general
licenses to authorize activities otherwise prohibited under the new
executive order, several general licenses (e.g., General
Licenses 2A, 4C, 15B, 16B and 20A), were amended to incorporate
additional changes and accordingly, careful review
of the amended license is required prior to reliance
thereon.

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